Why Justice Scalia Should Be a Constitutional Comparativist ... Sometimes

By Gray, David C. | Stanford Law Review, March 2007 | Go to article overview
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Why Justice Scalia Should Be a Constitutional Comparativist ... Sometimes


Gray, David C., Stanford Law Review


INTRODUCTION
I. THE LIVING ROOTS OF CONSTITUTIONAL COMPARATIVlSM
II. JUSTICE SCALIA'S OPPOSITION TO CONSTITUTIONAL
    COMPARATIVlSM
III. AN ORIGINALIST ARGUMENT FOR CONSTITUTIONAL
     COMPARATIVISM
IV. ORIGINALIST AS PRAGMATIST?
V. HOW TO BE AN ORIGINAL CONSTITUTIONAL COMPARATIVIST
CONCLUSION: FUTURE CHALLENGES FOR A UNIFIED THEORY OF
   CONSTITUTIONAL COMPARATIVISM

Because I do not believe that the meaning of our Eighth Amendment, any more than the meaning of other provisions of our Constitution, should be determined by the subjective views of five Members of this Court and like-minded foreigners, I dissent.

--Antonin Scalia, Associate Justice of the Supreme Court ([dagger])

INTRODUCTION

The proper role of international law in domestic constitutional adjudication is a hot issue in legal circles and beyond, particularly in light of attacks on an "activist" judiciary, presently the fad among pundits, politicians, and pulpitarians. While the contest has been simmering for years in Congress, (1) on the Court, (2) and among academics, (3) the top blew off the pot during the 2003 and 2004 Supreme Court terms "[w]hen [Justice] Kennedy, who's hardly a liberal, started citing these international sources ... [and] the subject exploded in the broader political world." (4)

It is no surprise to his fans or critics that Justice Scalia has been at the front of this contest. In written decisions, (5) public speeches, (6) and an unprecedented debate on the topic with Justice Breyer, (7) Justice Scalia has drummed a regular beat against the use of contemporary foreign law materials when interpreting the Constitution. (8) This Article provides a critical exegesis of his position and argues that, in a narrow set of constitutional cases, including those implicating the Eighth Amendment prohibition against cruel and unusual punishment, Justice Scalia, as an originalist, ought to refer to contemporary foreign sources.

The first Part of this Article outlines positions adopted by members of the Court in favor of constitutional comparativism. With this frame drawn, the second Part elaborates Justice Scalia's commitment to originalism as a theory of constitutional interpretation and explains his opposition to the use of contemporary foreign law materials when interpreting the Constitution. The second Part also responds to some of Justice Scalia's more prominent critics, arguing that their attacks misunderstand Justice Scalia's views, and therefore fail to provide argumentative clash. The third Part adopts a novel approach, taking a position within originalism and arguing that, on pain of contradiction, originalists must take into account contemporary views, foreign and domestic, in a limited set of cases where the meaning of the Constitution's universalist language is at stake. The fourth Part returns to the task of sympathetic exegesis, arguing that Justice Scalia's steadfast refusal to consider foreign sources is a practical response to an apparently insurmountable epistemic challenge. The final Part sketches a solution to this epistemic challenge and outlines a role for contemporary international law in originalist constitutional interpretation. (9)

I. THE "LIVING" ROOTS OF CONSTITUTIONAL COMPARATIVISM

The best place to start is with a visit to the opposing camp. At least four present Justices of the Supreme Court, Stevens, Kennedy, Ginsburg, and Breyer, and the recently retired Justice O'Connor, are proponents of what David Fontana might call "positive," "ahistorical comparativism." (10) Their views spring from the premise that interpreting the Constitution is not merely an exercise in painstaking historical investigation, but requires reading constitutional language with the benefit of intervening events and experiences. In a recent speech before the American Society of International Law, Justice Ginsburg stated the point thus:

   The notion that it is improper to look beyond the borders of the
   United States in grappling with hard questions has a close kinship
   to the view of the U. 

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